The Kharkiv Human Rights Protection Group works to help people whose rights have been violated and investigates cases involving such abuse, as well as assessing the overall human rights situation in Ukraine. The Group also seeks to develop awareness of human rights issues through public events and its various publications

In my opinion, the problem of eradicating torture or ill-treatment by law enforcement agencies is the toughest in the human rights realm since the police view such actions as well-established, usual, routine and in no way criminal. Since 2001 torture has been a criminal offence, the punishment for which is set out in Article 127 of the Criminal Code, yet there have only been isolated sentences for it. The number of victims, however, is staggering.

The scale of the problem

According to data from the Kharkiv Institute of Social Research the estimated number of victims of unlawful violence in 2004 was 1, 04 million; for the period from 2005-2009 – 1, 32 million; in 2010 - 790, 000, у 2011 – 984, 000. The study was carried out by asking people in five regions (3, 000 people in the Kyiv, Kharkiv, Lviv and Poltava oblasts, as well as the Crimea, through structure interviews carried out at the respondent’s home. The percentage of respondents who had suffered from police violence was extrapolated over the entire adult population in Ukraine. It is noteworthy that under the civilian Interior Ministers Yury Lutsenko and Vasyl Tsushko who tried to tackle this shameful behaviour, the estimated number of victims fell by around 4 times, then from the beginning of 2010 again began increasing and in two years hovered near one million a year. In 2012 the study was not carried out.

According to reports from the Prosecutor General’s Office, in 2012 44 criminal cases involving the use of torture by police officers were passed to the courts. 8 were under Article 127 of the Criminal Code; 3 under Article 364 (abuse of power or official position); 31 under Article 365 (exceeding power or official position); 2 cases under other articles. This is a pitiful result for criminal prosecution of law enforcement officers who use torture and other forms of unlawful violence given that for the first 9 months of 2012 prosecutor’s offices received 3, 600 complaints of ill-treatment. However according to Ombudsperson Valeria Lutkovska only 100 criminal cases were opened over those complaints, this confirming the ineffectiveness and incapability of the Prosecutor. During the first half of 2013, 41 complaints were received alleging a crime by police officers falling under Article 127. 3 cases were passed to the court, while the criminal investigations over 32 complaints were terminated. Under Article 364 146 criminal investigations were carried out: 139 were terminated, and not one was passed to the court. 1, 938 criminal investigations were carried out under Article 365; 1692 were terminated, and 34 indictments were passed to the court.

NGOs’ statistics indicate that the prevalence of ill-treatment by law enforcement bodies is considerably higher. The network of 15 Ukrainian Helsinki Human Rights Union Public Advice Centres registered 202 complaints in 2009; 172 in 2010; 241 in 2011; 178 in 2012 and 139 in the first 6 months of 2013. Of these the Kharkiv Human Rights Group [KHPG] received 55 complaints in 2009; 63 in 2010; 88 in 2011; 30 in 2012; 28 for the first half of 2013. In 2012 the number of complaints fell a little, and in 2013 the number of complaints alleging various forms of ill-treatment has risen as compared with 2012.

These statistics are convincing evidence that the claims that with the entry into force of the new Criminal Procedure Code [CPC] on 19 November 2012, torture by the police would stop are premature. This view, for example, was expressed by Ombudsperson Valeria Lutkovska in an interview to Channel 5, based on a reduction in the number of such complaints to her Secretariat. However, the absence of complaints to the Ombudsperson, in my opinion, is rather a consequence of the obligation under the new CPC to start criminal proceedings. Furthermore, the number of complaints is significantly lower than the number of victims. The lack of complaints alleging torture can indicate lack of faith by the victims that they will obtain satisfaction. Also people are scared of complaining about the police and not without cause. Nonetheless, how does the new CPC influence the use of unlawful violence by the police, where does such optimism come from?

Safety devices against torture in the new CPC

At first glance the new CPC does indeed make torture impossible. We know that it is used most often immediately after a person is detained, with the protocol of detention being drawn up after “working” with the detainee and obtaining a confession. Anything from minutes to several hours or several days could divide the moment when the person was actually detained and the point at which the detention was registered. The new CPC specially stipulates that a person’s detention begins when he or she is by force or in compliance with an order forced to remain with an authorized official or in premises stipulated by the latter. The CPC also sets out fairly strict requirements regarding registration of detention and being brought to the relevant police stations, including the duty to carry out an investigation where this has been unwarrantedly drawn-out.

It is furthermore much harder under the new CPC to detain a person without a court order, and this has led to a 30% reduction in the number of criminal procedural detentions, or 850 cases each month. The number of applications from investigators and prosecutors for detention orders has decreased by 45%; the number of searches – by 30%.

Without any doubt the prohibition in the new CPC for court rulings to be justified on the grounds of evidence given to an investigator or prosecutor hypothetically makes it futile to receive written confessions from a detainee. Now the court should receive evidence of guilt directly at the court hearing.

The new CPC also demands that the person who carried out the detention informs the person without delay in language which s/he can understand about the grounds for the detention and what crime s/he is suspected of having committed. They should also explain that the detainee has the right to a lawyer; to receive medical assistance; to give an explanation, testimony or not say anything regarding the suspicions; to immediately inform other people of their detention and where they are; to demand a check into the grounds for the detention and other procedural rights envisaged by the CPC.

How these safety devices look in practice

The list of rights which the law provides a suspect with the latter’s signature must be attached to the protocol of detention, yet this is not a guarantee that the suspects are familiarized with their rights. According to a study, despite the fact that in 99% of the criminal files there was a protocol that detainees had had their rights explained to them, more than 70% of those detained had not been informed of their rights, while 20% had been given the chance to quickly read a sheet of paper with a list of these rights without anybody explaining anything.

Our observations show that there have not been significant changes in the work of the law enforcement agencies. Infringements like covert detention; delays in registering detention; or detention on trumped up grounds continue to be used.

According to Interior Ministry statistics, 3801 suspects were detained by Interior Ministry investigative bodies without a court order in the first quarter of 2013.

The practice continues where a person is actually detained by officers with the official protocol of detention being drawn up by the investigator. The time and place of the actual detention is accordingly given wrongly on the protocol, with the delay in registering the detention thus concealed, . Most importantly, this conceals the actual detention under the control of officers for an indefinitely long period without any possibility of enjoying the appropriate procedural rights.

Advocates defending clients in criminal proceedings report that in order to bypass the general ban on detention without a court order sometimes the following “procedure” is used: first a person is actually detained and held in a police station where the information needed about a crime is obtained. Various forms of subterfuge are used, for example entries in the registration book about the person “visiting” the police station at his or her own wish and then “leaving” the premises whereas in fact they continue to be held at the police station. Then the investigator applies to the court for a detention order and, upon receiving it, draws up the protocol of detention in which a point after the court order was issued is given, with the place of detention also invented.

The chance of obtaining, via physical and / or psychological pressure, information which will make it possible to receive evidence, including material proof, of the crime, being held unlawfully under the control of officers from the moment of actual detention and until official registration of the detention, remains sufficient motivation for the use of torture. Moreover, through the use of physical and psychological force you can intimidate the detainee so that during his meeting with his lawyer he either rejects the latter’s services, or, afraid of being ill-treatment by officers in the future, he chooses to admit guilt. Furthermore, despite the fact that explanations received from those involved in criminal proceedings and others are not proof, such explanations continue to be attached to the criminal file.

We would note that the result of an investigative experiment is a separate form of evidence, and there is thus nothing to stop the suspect being forced to demonstrate the mechanism for committing the crime (even if the person has not committed anything against the law) during the investigative experiment, and this evidence will from the formal point of view be allowed. The possibility also remains of simply planting certain proof on the suspect and no code is capable of preventing such practice in the investigation of criminal cases. Therefore the role of the courts is vital and they should take a tough stand when analyzing evidence in a case and reject all obtained under dubious circumstances.